Durable Power of Attorney Overview
A Standard Document that allows an individual residing in Nevada to authorize a health care agent to make health care decisions on the individual’s behalf or receive health care information on the individual’s behalf, or both. The document, also called an advance directive for health care, may include instructions regarding specific health care treatments, including advance directives regarding lifesustaining treatments or end-of-life care. This Standard Document contains integrated notes and drafting tips.
DRAFTING NOTE: READ THIS BEFORE USING DOCUMENT
The estate planning process should include the individual’s directives for making health care decisions if the individual becomes unable to make the individual’s own decisions. Any competent adult residing in (or seeking health care in) Nevada may create an advance health care directive, also known as power of attorney for health care, to appoint a third party to serve as a health care agent, and otherwise make the adult’s health care wishes known (NRS 162A.700 to 162A.865).
This Standard Document refers to the individual making the power of attorney for health care as the “principal” and the appointed third party as the “health care agent”.
The power of attorney for health care helps the principal retain some control over the principal’s health care decisions while the principal is incapacitated by appointing a trusted individual to carry out the principal’s health care wishes. Health care providers can look to the designated agent for authorization and consent to perform medical procedures and to pursue courses of treatment as they can look to a principal with capacity.
FORMS OF ADVANCE HEALTH CARE DIRECTIVES
In addition to this durable power of attorney for health care, there are other advance directives that may be appropriate for a Nevada client depending on the circumstances, including:
A declaration governing the withholding or withdrawal of life-sustaining treatment, which is sometimes referred to as a “living will” (NRS 449A.400 to 449A.481). The durable power of attorney for health care decisions is considered more thorough than a living will. It is also a power of attorney document, with health care instructions directed at the principal’s choice of health care agent. The living will is a directive specifically addressing life-sustaining treatment with instructions directed at health care providers.
An advance directive for psychiatric care (NRS 449A.600 to 449A.645). A power of attorney for health care decisions does not contain instructions specifically relating to the principal’s psychiatric care. A client may use Nevada’s statutory form to create an advance directive for psychiatric care.
A do-not-resuscitate (DNR) order (NRS 450B.420). A DNR is made by a Nevadalicensed physician or a Nevada-licensed advance practice registered nurse only when the person is a “qualified patient” (a patient determined to be terminally ill). The DNR, which is often evidenced by an identification bracelet or medallion, puts emergency-care personnel on notice not to resuscitate and to withhold lifesustaining treatments to the patient.
A Provider Order for Life-Sustaining Treatment (POLST) form (NRS 449A.542). The Statutory Form is a basic form that is only somewhat personalized, primarily relating to general future conditions. In contrast, A POLST is designed for more specific and customized directives than a power of attorney for health care decisions, which primarily relates to general future conditions. A POLST is for a seriously ill individual that needs specialized instructions for health care and related existing conditions and illnesses. Like the DNR, POLSTs are created by medical care providers (physician, physician assistant, or advanced practice registered nurse) at the patient’s request and not by the patient.
A modified power of attorney form for an adult with an intellectual disability under statute (NRS 162A.745 and 162A.865 and see Modified Form for Adult with an Intellectual Disability). A modified power of attorney is for an adult with an intellectual disability and is generally simpler, less detailed, and easier to understand than a power of attorney for health care decisions.
This Standard Document uses the statutory form language and format to create a power of attorney for health care and otherwise provide health care instructions (NRS 162A.860 and see the Nevada State Legislature’s form Durable Power of Attorney for Health Care Decisions). A power of attorney for health care may be substantially in the form provided. Therefore, the principal is not required to use this or any other document as an advance directive. Using a form like the statutory form provides a form that health care providers and institutions are more familiar with and so are more likely to accept.
The power of attorney for health care:
- Provides medical-care providers and health care agents with instructions regarding health care treatments.
- Limits the liability of medical-care providers that act consistently with the terms of this form.
Modified Form for Adult with an Intellectual Disability
Nevada provides a modified form of the statutory durable power of attorney for an adult with an intellectual disability (NRS 162A.865). An intellectual disability is a significantly sub average general intellectual functioning existing with deficits in adaptive behavior and manifested during the developmental period (NRS 162A.745). Unlike this standard form, the modified form uses a plain English style and requires the agent to sign an acknowledgment, though many of the Drafting Notes in this Standard Document apply there, as well. Counsel should advise a client to use the modified form whenever the principal is suspected of having an intellectual disability.
Because the modified form is for use by a person with an intellectual disability, there is always a concern regarding the principal’s capacity to understand the form. Nevada statutory and case law do not specify the mental capacity required for this type of directive. However, it is general practice to have it signed only by a person that understands the meaning of the form and the consequences of signing it, as required under the general rules applied to contracts and other legal documents (see Gen. Motors v. Jackson, 900 P.2d 345, 349 (1995)). Although not required by law, the drafting attorney should consider memorializing evidence that the principal understood the form and the consequences of signing it. This may involve obtaining medical and psychological evaluations.
CAPACITY TO SIGN POWER OF ATTORNEY
Any adult (18 years of age or older) may execute a power of attorney for health care (NRS 450B.420(1)). Nevada statutory and case law do not specify the mental capacity required to sign the power of attorney. However, it is general practice to have it signed only by a person that understands the meaning of the form and the consequences of signing it, as required under the general rules applied to contracts and other legal documents (see Gen. Motors, 900 P.2d at 349).
If there is any question regarding the principal’s capacity to understand the form, the drafting attorney should provide evidence that the principal understood the meaning of the form and the consequences of signing the document. This may involve obtaining medical and psychological evaluations. If the principal appears to have capacity but may have an intellectual disability, counsel may wish to consider advising the principal to use a modified form for an adult with an intellectual disability under statute (see Modified Form for Adult with an Intellectual Disability).
If the person signing the power of attorney resides in a hospital, group residential facility, skilled nursing facility, or individual residential care home when the power of attorney is executed, a certification of competency must be attached to the power of attorney (NRS 162A.790(5)). The statute does not explain what information is required in a certification of competency.
DURABILITY AND CAPACITY TO MAKE HEALTH CARE DECISIONS
Powers of attorney for health care decisions are effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or on incapacity. If the power of attorney is effective on the principal’s incapacity, it is effective on a written determination by a physician, psychiatrist, or licensed psychologist that the principal is incapacitated (NRS 162A.810.)
If the power of attorney is effective when executed, as is most often the case, after executing the power of attorney for health care, the principal continues to make the principal’s own health care decisions until the principal cannot do so. Because the power of attorney is effective when executed, there does not need to be a medical determination of incapacity (the agent may simply make decisions for the principal when the principal cannot effectively communicate those decisions to the health care provider.
ADVANCED HEALTH CARE DIRECTIVE REGISTRY
A principal may file an executed power of attorney with Nevada’s Advanced Health Care Directive Registry. If the principal is incapacitated and did not provide a copy of the advance health care directive to a third party, the principal’s health care provider and designated individuals can find a copy of the power of attorney on the registry. The principal should decide whether or not to register the power of attorney. Certain people may be uncomfortable registering a private document, even though it is not a public record. There is generally no significant advantages or disadvantages resulting from registering or failing to register the form.
TERMINATION OF POWER OF ATTORNEY
A power of attorney for health care terminates when:
- The principal dies.
- The principal revokes the power of attorney. For more information about revoking prior powers of attorney, see Drafting Note, Revocation of Prior Powers of Attorney.
- The power of attorney includes a termination date.
- The principal revokes the agent’s authority or the agent dies, become incapacitated or resigns, and the power of attorney does not provide for another agent to act.
If a document has been registered with the Nevada Secretary of State, the principal should file a form with the Secretary of State to initiate the withdrawal or replacement of previously filed forms with the Secretary of State (generally, either an Authorization to Change form, if the registrant wishes to amend the recorded form, or Authorization to Change Documents, if the registrant wishes to replace or withdraw a recorded form with another). There is no statutory requirement that the principal must file a form when a power of attorney is replaced or revoked. However, it is highly recommended to avoid any party relying on an outdated form.
The drafting party should replace bracketed language in ALL CAPS with case-specific facts or other information. Bracketed language in sentence case is optional language that the drafting party may include, modify, or delete in its discretion. A forward slash between words or phrases indicates that the drafting party should include one of the words or phrases contained in the brackets in the document.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE DECISIONS
WARNING TO PERSON EXECUTING THIS DOCUMENT
THIS IS AN IMPORTANT LEGAL DOCUMENT. IT CREATES A DURABLE POWER OF ATTORNEY FOR HEALTH CARE. BEFORE EXECUTING THIS DOCUMENT, YOU SHOULD KNOW THESE IMPORTANT FACTS:
1. THIS DOCUMENT GIVES THE PERSON YOU DESIGNATE AS YOUR AGENT THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU. THIS POWER IS SUBJECT TO ANY LIMITATIONS OR STATEMENT OF YOUR DESIRES THAT YOU INCLUDE IN THIS DOCUMENT. THE POWER TO MAKE HEALTH CARE DECISIONS FOR YOU MAY INCLUDE CONSENT, REFUSAL OF CONSENT OR WITHDRAWAL OF CONSENT TO ANY CARE, TREATMENT, SERVICE OR PROCEDURE TO MAINTAIN, DIAGNOSE OR TREAT A PHYSICAL OR MENTAL CONDITION. YOU MAY STATE IN THIS DOCUMENT ANY TYPES OF TREATMENT OR PLACEMENTS THAT YOU DO NOT DESIRE.
2. THE PERSON YOU DESIGNATE IN THIS DOCUMENT HAS A DUTY TO ACT CONSISTENT WITH YOUR DESIRES AS STATED IN THIS DOCUMENT OR OTHERWISE MADE KNOWN OR, IF YOUR DESIRES ARE UNKNOWN, TO ACT IN YOUR BEST INTERESTS.
3. EXCEPT AS YOU OTHERWISE SPECIFY IN THIS DOCUMENT, THE POWER OF THE PERSON YOU DESIGNATE TO MAKE HEALTH CARE DECISIONS FOR YOU MAY INCLUDE THE POWER TO CONSENT TO YOUR DOCTOR NOT GIVING TREATMENT OR STOPPING TREATMENT WHICH WOULD KEEP YOU ALIVE.
4. UNLESS YOU SPECIFY A SHORTER PERIOD IN THIS DOCUMENT, THIS POWER WILL EXIST INDEFINITELY FROM THE DATE YOU EXECUTE THIS DOCUMENT AND, IF YOU ARE UNABLE TO MAKE HEALTH CARE DECISIONS FOR YOURSELF, THIS POWER WILL CONTINUE TO EXIST UNTIL THE TIME WHEN YOU BECOME ABLE TO MAKE HEALTH CARE DECISIONS FOR YOURSELF.
5. NOTWITHSTANDING THIS DOCUMENT, YOU HAVE THE RIGHT TO MAKE MEDICAL AND OTHER HEALTH CARE DECISIONS FOR YOURSELF SO LONG AS YOU CAN GIVE INFORMED CONSENT WITH RESPECT TO THE PARTICULAR DECISION. IN ADDITION, NO TREATMENT MAY BE GIVEN TO YOU OVER YOUR OBJECTION, AND HEALTH CARE NECESSARY TO KEEP YOU ALIVE MAY NOT BE STOPPED IF YOU OBJECT.
6. YOU HAVE THE RIGHT TO REVOKE THE APPOINTMENT OF THE PERSON DESIGNATED IN THIS DOCUMENT TO MAKE HEALTH CARE DECISIONS FOR YOU BY NOTIFYING THAT PERSON OF THE REVOCATION ORALLY OR IN WRITING.
7. YOU HAVE THE RIGHT TO REVOKE THE AUTHORITY GRANTED TO THE PERSON DESIGNATED IN THIS DOCUMENT TO MAKE HEALTH CARE DECISIONS FOR YOU BY NOTIFYING THE TREATING PHYSICIAN, HOSPITAL OR OTHER PROVIDER OF HEALTH CARE ORALLY OR IN WRITING.
8. THE PERSON DESIGNATED IN THIS DOCUMENT TO MAKE HEALTH CARE DECISIONS FOR YOU HAS THE RIGHT TO EXAMINE YOUR MEDICAL RECORDS AND TO CONSENT TO THEIR DISCLOSURE UNLESS YOU LIMIT THIS RIGHT IN THIS DOCUMENT.
9. THIS DOCUMENT REVOKES ANY PRIOR DURABLE POWER OF ATTORNEY FOR HEALTH CARE.
10. IF THERE IS ANYTHING IN THIS DOCUMENT THAT YOU DO NOT UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.
1. DESIGNATION OF HEALTH CARE AGENT.
I, [PRINCIPAL NAME]
(insert your name) do hereby designate and appoint:
Name: [AGENT NAME]
Address: [AGENT ADDRESS]
Telephone Number: [AGENT TELEPHONE NUMBER]
as my agent to make health care decisions for me as authorized in this document.
(Insert the name and address of the person you wish to designate as your agent to make health care decisions for you. Unless the person is also your spouse, legal guardian or the person most closely related to you by blood, none of the following may be designated as your agent: (1) your treating provider of health care; (2) an employee of your treating provider of health care; (3) an operator of a health care facility; or (4) an employee of an operator of a health care facility.)
DRAFTING NOTE: DESIGNATING A HEALTH CARE AGENT
The principal should choose a trusted and competent person to serve as the agent and include that person’s name, address, and telephone number. The agent should:
- Agree to act as agent.
- Know and respect the principal’s objectives and values.
- Be willing to act according to the principal’s wishes.
- Be available and accessible if the principal cannot make health care decisions. Ideally, the agent should live close to the principal.
- Be able to act calmly under pressure, often with limited information.
- Be able to handle potential family conflicts regarding principal’s wishes.
Counsel should recommend that the principal discuss this role with the potential agent before executing the advance health care directive.
A principal may designate two or more persons to act as co-agents. Unless the principal provides otherwise in the power of attorney, each co-agent may exercise the co-agent’s authority independently. (NRS 162A.830(1).) However, the principal generally should not designate co-agents unless there is a specific reason to do so. Health care providers prefer to look to one person for health care decisions. Also, having co-agents may result in confusion or delay in providing health care.
If the principal designates co-agents, the principal should describe whether the coagents must exercise their authority jointly (unanimously or by majority, if more than two co-agents are designated) or independently.
The principal may desire to have co-agents required for some decisions but allow one to act for other decisions. If so, counsel may use language like:
“I have appointed co-agents who must act jointly and unanimously with respect to decisions relating to the withholding or withdrawal of lifesustaining treatments or procedures, including with withholding or withdrawal of artificially administered nutrition and hydration. In all other respects, either co-agent may act alone and may make decisions unilaterally.”
LIMITATIONS ON PARTIES THAT MAY SERVE AS HEALTH CARE AGENT
Any adult person generally may serve as health care agent, provided that the following persons may not serve as a health care agent:
- A health care provider.
- An employee of a health care institution where the principal is receiving care.
- An operator or employee of a community care facility or residential care facility where the principal is receiving care.
These prohibitions do not apply if the designated agent is the spouse, legal guardian, or next of kin of the principal. (NRS 162A.840.)
2. CREATION OF DURABLE POWER OF ATTORNEY FOR HEALTH CARE.
By this document I intend to create a durable power of attorney by appointing the person designated above to make health care decisions for me. This power of attorney shall not be affected by my subsequent incapacity.
3. GENERAL STATEMENT OF AUTHORITY GRANTED.
In the event that I am incapable of giving informed consent with respect to health care decisions, I hereby grant to the agent named above full power and authority: to make health care decisions for me before or after my death, including consent, refusal of consent or withdrawal of consent to any care, treatment, service or procedure to maintain, diagnose or treat a physical or mental condition; to request, review and receive any information, verbal or written, regarding my physical or mental health, including, without limitation, medical and hospital records; to execute on my behalf any releases or other documents that may be required to obtain medical care and/or medical and hospital records, EXCEPT any power to enter into any arbitration agreements or execute any arbitration clauses in connection with admission to any health care facility including any skilled nursing facility; and subject only to the limitations and special provisions, if any, set forth in paragraph 4 or 6.
4. SPECIAL PROVISIONS AND LIMITATIONS.
(Your agent is not permitted to consent to any of the following: commitment to or placement in a mental health treatment facility, convulsive treatment, psychosurgery, sterilization or abortion. If there are any other types of treatment or placement that you do not want your agent’s authority to give consent for or other restrictions you wish to place on his or her agent’s authority, you should list them in the space below. If you do not write any limitations, your agent will have the broad powers to make health care decisions on your behalf which are set forth in paragraph 3, except to the extent that there are limits provided by law.)
In exercising the authority under this durable power of attorney for health care, the authority of my agent is subject to the following special provisions and limitations:
I understand that this power of attorney will exist indefinitely from the date I execute this document unless I establish a shorter time. If I am unable to make health care decisions for myself when this power of attorney expires, the authority I have granted my agent will continue to exist until the time when I become able to make health care decisions for myself.
I wish to have this power of attorney end on the following date: [DATE]
DRAFTING NOTE: DURABILITY AND DURATION
Paragraphs 2 and 5 indicate that the power of attorney:
- Is effective when executed and continues indefinitely.
- Continues during the principal’s incapacity (the power of attorney is durable). If the principal wishes to make the power of attorney effective on incapacity, as determined by a medical professional, counsel should revise this language.
If the principal wants the agent’s authority to end at an earlier time, counsel should include that date in the space provided. However, including a termination date is not common. If the principal does not want a termination date, the principal should strike through the applicable language. The principal rarely includes a termination date.
However, including a termination date may be appropriate in certain circumstances, including when the principal:
- Knows an agent is or will become unavailable.
- Wants the designation to end when a preferred agent becomes available. For more information on durability and effective date, see Drafting Note, Durability and Capacity to Make Health Care Decisions.
GENERAL STATEMENT OF AUTHORITY GRANTED
By executing this power of attorney for health care, the principal authorizes the agent to make all health care decisions during the principal’s incapacity unless the principal includes express directions or restrictions (NRS 162A.790(1)).
Paragraph 3 gives a general statement of the broad authority the principal grants to the agent. The principal should not revise this language without the advice of counsel. Revision may be appropriate when the statutory form is modified in a way to make it inconsistent with this general statement of authority. For more information on the Nevada statutory form, see Drafting Note, Statutory Form.
SPECIAL PROVISIONS AND LIMITATIONS
The principal should recite specific health care desires, limitations, or directions in paragraph 4, such as
- Authorizing specific treatments and procedures.
- Listing unwanted types of treatment, care, and medications.
- Provide any limits or restrictions on the agent’s authority to make health care decisions.
The principal may further limit or direct specific life-sustaining health care decisions in paragraph 6 by initialing next to the applicable statements. For more information on the directions in paragraph 6, see Drafting Note, Statement of Desires Regarding Life Sustaining Treatment).
If the principal wishes to address anatomical gifts or the disposition of the principal’s remains, counsel may do so in paragraph 13 (see Drafting Note, Anatomical Gifts and Dispositions of Remains).
LIMITATIONS TO AGENT’S AUTHORITY
Regardless of any special instructions, the agent may not consent to:
- Commitment or placement of the principal in a facility for mental illness treatment.
- Convulsive treatment.
- Averse intervention as defined in statute.
- Experimental treatments or participation in health research programs.
Any other treatment to which the principal states in the power of attorney that the agent may not consent.
6. STATEMENT OF DESIRES.
(With respect to decisions to withhold or withdraw life-sustaining treatment, your agent must make health care decisions that are consistent with your known desires. You can, but are not required to, indicate your desires below. If your desires are unknown, your agent has the duty to act in your best interests; and, under some circumstances, a judicial proceeding may be necessary so that a court can determine the health care decision that is in your best interests. If you wish to indicate your desires, you may INITIAL the statement or statements that reflect your desires and/ or write your own statements in the space below.)
(If the statement reflects your desires, initial the box next to the statement.)
1. I desire that my life be prolonged to the greatest extent possible, without regard to my condition, the chances I have for recovery or long-term survival, or the cost of the procedures. [ ]
2. If I am in a coma which my doctors have reasonably concluded is irreversible, I desire that life-sustaining or prolonging treatments not be used. (Also should utilize provisions of NRS 449A.400 to 449A.481, inclusive, if this subparagraph is initialed.) [ ]
3. If I have an incurable or terminal condition or illness and no reasonable hope of long-term recovery or survival, I desire that life-sustaining or prolonging treatments not be used. (Also should utilize provisions of NRS 449A.400 to 449A.481, inclusive, if this subparagraph is initialed.) [ ]
4. Withholding or withdrawal of artificial nutrition and hydration may result in death by starvation or dehydration. I want to receive or continue receiving artificial nutrition and hydration by way of the gastrointestinal tract after all other treatment is withheld. [ ]
5. I do not desire treatment to be provided and/or continued if the burdens of the treatment outweigh the expected benefits. My agent is to consider the relief of suffering, the preservation or restoration of functioning, and the quality as well as the extent of the possible extension of my life. [ ]
(If you wish to change your answer, you may do so by drawing an “X” through the answer you do not want, and circling the answer you prefer.)
Other or Additional Statements of Desires:
DRAFTING NOTE: STATEMENT OF DESIRES REGARDING LIFE SUSTAINING TREATMENT
The principal uses the provisions of paragraph 6 to clarify decisions to withhold or withdraw life-sustaining treatment in certain circumstances. The principal should initial the statements regarding life-sustaining treatment with which the principal agrees. If a provision is not initialed, it is assumed the principal disagrees with that statement.
The principal should clarify if the principal disagrees with the statement by putting an X through the answer. The principal may also rephrase the statement so that the principal agrees to it and then should initial it. If the principal wishes to merely defer to the judgment of the health care agent or to the attending physician, the principal should expressly state that desire where indicated.
The agent must make decisions regarding the use or nonuse of life sustaining treatment with the known desires of the principal in the power of attorney or otherwise (NRS 162A.850(2)).
MUST BE CONSISTENT LIVING WILL
The principal uses the provisions of paragraph 6 to clarify decisions to withhold or withdraw life-sustaining treatment in certain circumstances. These provisions overlap with the provisions of the Nevada living will statutes. If the principal also creates a living will, the principal needs to coordinate the power of attorney with the living will (as suggested in paragraphs 2 and 3, which reference the living will statutory provisions at NRS 449A.400 to 449A.481).
Counsel can modify this Standard Document to qualify as both a health care power of attorney and as a living will by:
- Revising the directives in paragraph 6 of the health care power of attorney form to both the health care providers and to the health care agent.
- Ensuring that the form is executed in compliance with the statutes applicable to both forms.
Because the living will statutes do not provide for a notary option, it is recommended that the form be witnessed and not notarized.
OTHER OR ADDITIONAL STATEMENTS OF DESIRES
The last part of paragraph 6 of this power of attorney entitled “Other or Additional Statements of Desires” can be customized to give specific instructions relating to specific procedures or treatments related to life-sustaining treatment, such as:
- Cardiopulmonary resuscitation (CPR).
- Intubation (mechanical respiration).
- Artificial nutrition and hydration (feeding tubes).
The principal may include these specific instructions by adding language in the Other or Additional Statements of Desires section or by editing the provisions already included in the statutory form and initialing in the space provided next to the desired provision, as modified, or both. The principal does not usually include additional statements. But, they may be appropriate when the principal has strong desires relating to specific treatments or procedures or certain pre-existing conditions.
7. DESIGNATION OF ALTERNATE AGENT.
(You are not required to designate any alternative agent but you may do so. Any alternative agent you designate will be able to make the same health care decisions as the agent designated in paragraph 1, page 2, in the event that he or she is unable or unwilling to act as your agent. Also, if the agent designated in paragraph 1 is your spouse, his or her designation as your agent is automatically revoked by law if your marriage is dissolved.)
If the person designated in paragraph 1 as my agent is unable to make health care decisions for me, then I designate the following persons to serve as my agent to make health care decisions for me as authorized in this document, such persons to serve in the order listed below:
A. First Alternative Agent
Name: [FIRST ALTERNATIVE AGENT NAME]
Telephone Number: [TELEPHONE NUMBER]
B. Second Alternative Agent
Name: [SECOND ALTERNATIVE AGENT NAME]
Telephone Number: [TELEPHONE NUMBER]
DRAFTING NOTE: ALTERNATE HEALTH CARE AGENTS
The principal should include a provision that allows an alternate agent (sometimes called a successor agent) to act in an emergency if the named agent or prior alternate dies, resigns, or becomes incapacitated. The principal should include the alternate agents’ names, addresses, and telephone numbers.
Unless the power of attorney provides otherwise, an alternate agent:
- Has the same authority as the original agent.
- May not act until all predecessor agents resign, die, become incapacitated, are no longer qualified to serve or decline to serve.
(NRS 162A.830(2).) The principal may designate alternate co-agents, but this is not recommended (see Drafting Note, Co-Agents).
8. PRIOR DESIGNATIONS REVOKED.
I revoke any prior durable power of attorney for health care.
DRAFTING NOTE: REVOCATION OF PRIOR POWERS OF ATTORNEY
The statutory form includes language indicating that the principal revokes any previous durable powers of attorney for health care. If there is a prior health care power of attorney or other advance directive that is being revoked, the principal should include additional language specifically revoking that instrument. If any advance directive has been registered that is no longer valid, the registration with the Nevada Secretary of State should be revoked as well (see Drafting Note, Advance Health Care Directive Registry).
9. WAIVER OF CONFLICT OF INTEREST.
If my designated agent is my spouse or is one of my children, then I waive any conflict of interest in carrying out the provisions of this Durable Power of Attorney for Health Care that said spouse or child may have by reason of the fact that he or she may be a beneficiary of my estate.
If the legality of any provision of this Durable Power of Attorney for Health Care is questioned by my physician, my agent or a third party, then my agent is authorized to commence an action for declaratory judgment as to the legality of the provision in question. The cost of any such action is to be paid from my estate. This Durable Power of Attorney for Health Care must be construed and interpreted in accordance with the laws of the State of Nevada.
11. NOMINATION OF GUARDIAN.
If, after execution of this Durable Power of Attorney for Health Care, proceedings seeking an adjudication of incapacity are initiated [either for my estate or my person/for my person], I hereby nominate as my guardian [or conservator] for consideration by the court my agent herein named, in the order named.
DRAFTING NOTE: NOMINATION OF GUARDIAN
Paragraph 11 of the power of attorney for health care offers options to nominate the named agent as both the principal’s conservator and guardian:
- A conservator (or guardian of the estate) is appointed by the court to act for the principal with respect the principal’s property and financial matters when the principal is adjudged to be unable to handle such matters.
- A guardian of the person is appointed by the court to act regarding the principal’s person (personal, non-property-related matters) when the principal is adjudged to be unable to properly care for the principal.
(NRS 162A.800 and 162A.860(11).) Though the statutory health care power of attorney includes both nominations, it is common practice to instead name:
- The conservator in an individual’s power of attorney for financial matters.
- The guardian of the person in the individual’s power of attorney for health care. However, if this is desired, both the statutory power of attorney for financial matters and the statutory power of attorney for health care may make this clear (see Standard Document, Power of Attorney (NV)).
Counsel should include and delete the appropriate bracketed language depending on whether the principal wants to nominate the agent named in this power of attorney for health care as both conservator and guardian or as only conservator on the principal’s incapacity.
Counsel should revise this language also if the principal wishes to name a person other than the agent as guardian or conservator.
NOMINATIONS IN DIFFERENT DOCUMENTS MUST BE CONSISTENT
Nevada law does not require a person to nominate a guardian or conservator in any specific document. The statutory provisions allow a nomination to be in a will, power of attorney, or another written instrument, including an electronic will (NRS 159.028, 159.0613, and 159.065(5)). Because Nevada law permits a guardianship nomination to be in any written instrument, it is common for a person to sign multiple forms that name a guardian or conservator. Therefore, it is crucial that any designation of a guardian in this form be consistent with any other documents in which the principal nominates a guardian. If nominations conflict, the presumption is that the most recent designation controls. However, counsel should generally include language saying that the designation revokes all prior designations, for clarity even if there are no prior designations (see Drafting Note, Revocation of Prior Powers of Attorney).
[12. RELEASE OF INFORMATION.
I agree to, authorize and allow full release of information by any government agency, medical provider, business, creditor or third party who may have information pertaining to my health care, to my agent named herein, pursuant to the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended, and applicable regulations.]
DRAFTING NOTE: HIPAA RELEASE
Under the terms of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. §§ 1320d to 1320d-9), a health care agent appointed in a power of attorney for health care is the individual’s “personal representative” for HIPAA purposes and may receive protected health care information even without a specific authorization (45 C.F.R. § 164.502(g)). This designation of health care agent contains a HIPAA release to confirm to the health care provider, doctor, pharmacist, or other medical professional that the provider is authorized to release medical records to the agent. Paragraph 12 is not necessary and therefore optional as to the initial agent named, but it should be included to avoid delay or confusion. It may be revised to apply to alternate agents. If the principal wants to remove this paragraph, counsel should renumber subsequent paragraphs.
This HIPAA release language may be construed to apply only to the currently acting health care agent and not to any alternate, making it difficult for an alternate agent to gain access to health care information in an emergency. To avoid unnecessary confusion in an emergency, counsel should have the principal consider extending this release to each designated alternate agent, as follows:
“I agree to, authorize and allow full release of information by any government agency, medical provider, business, creditor or third party who may have information pertaining to my health care, to my agent named herein and to each alternate agent named herein, pursuant to the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended, and applicable regulations. I specifically desire that each alternate agent named herein have access to health care information and to be able to act unilaterally in an emergency.”
If the principal includes language providing that the agent’s authority does not begin until the principal is incapacitated, medical professionals are not able to speak to the agent and share information concerning the patient without a separate HIPAA release until the principal’s physician has determined that the principal is incapacitated. A separate HIPAA release can authorize the release of protected medical information at any time, even while the principal is competent. These releases are available at most hospitals and online on many county websites (see, for example, Clark County’s Authorization to Use & Disclose Protected Health Information). For more information on HIPAA releases, see Standard Document, HIPAA Release.
13. UNIFORM ANATOMICAL GIFT ACT.
Pursuant to NRS 451.500 et seq., I hereby make a gift of my physical remains pursuant to the Nevada Uniform Anatomical Gift Act:
______ (Initial here if the following applies:) I direct that no gift be made of my physical remains or any part thereof. (If you initial this subparagraph, no gift of your physical remains shall be made, and you should skip the balance of this paragraph 11.)
No gift of my physical remains shall be made for any purpose listed below if I have initialed under the “No” column next to that purpose. I make a gift of my physical remains for the purposes next to which I have initialed in the “Yes” column and, with the consent of my health care agent, for the purposes next to which I have initialed in the column labeled “As my agent decides”.
|Purpose||Yes||No||As my agent decides|
|The treatment of or therapy for illness or disease of a living human.|
|Transplanting into a living human being.|
Subject to the approval of my health care agent (unless no health care agent is able and willing to act):
- The portion of my remains donated shall include all body parts, humors, and tissues that can be used for the purposes indicated.
- This anatomical gift is made to any physician, dentist, hospital, university, clinic, or organization that can use the donated organs for the specified purposes.
This anatomical gift is made on the condition that all expenses associated with this gift shall be borne by the donee.
DRAFTING NOTE: ANATOMICAL GIFTS AND DISPOSITIONS OF REMAINS
- Nevada’s statutory form does not address anatomical gifts (organ donations) under Nevada’s Revised Uniform Anatomical Gift Act (NRS 451.500 to 451.598) or provide instructions regarding the disposition of the principal’s mortal remains under NRS 451.024. These provisions are either added into the form or dealt with separately.
This paragraph provides language for the principal to make or refuse to make anatomical gifts under Nevada’s Uniform Anatomical Gift Act. The principal should initial by the second paragraph if the principal does not wish to make any anatomical gifts. If this is the case, the principal may skip the remaining portions of this paragraph (and should, out of an abundance of caution, strike through the rest of the language of this paragraph for clarity).
The principal may provide for anatomical gifts by completing the chart, as desired, subject to the language which follows in this paragraph. If this is the case, the principal should, out of an abundance of caution, strike through the language of the second paragraph (refusing to make anatomical gifts), for clarity.
Counsel may further revise this paragraph to abide by the principal’s wishes. No one may make an anatomical gift for a person without that person’s consent (NRS 451.562(1)). If a person has consented to be an organ donor without more specific directions, NRS 451.566 describes the anatomical gifts that are permitted and provides an order of priority for the persons who can make that gift.
DISPOSITION OF REMAINS
- The principal may provide for disposition of remains in the Special Provisions and Limitations paragraph (see Drafting Note, Special Provisions and Limitations). If a decedent did not provide instructions for the disposition of the decedent’s remains, statute provides the order of priority of persons who can make the decision relating to the disposition of the decedent’s remains (NRS 451.024).
- The decedent’s remains may be disposed of by burial, cremation, and alkaline hydrolysis (also known as aquamation and water cremation) (NRS 451.020 and 451.617). Any instructions for cremation or alkaline hydrolysis should include instructions for the disposition of the remnants that remain after that process. A health care power of attorney does not require a disposition of remains provision if the principal made separate instructions regarding the disposition of remains. If so, however, the principal should mention in the health care power of attorney that these instructions exist, by including language like:
- “I have made arrangements for the disposition of my mortal remains with [FUNERAL HOME NAME]. In conjunction with that, I have signed separate written instructions with respect to the disposition of my mortal remains, and my agent is directed to take steps to make sure that such instructions are followed.”
(YOU MUST DATE AND SIGN THIS POWER OF ATTORNEY)
I sign my name to this Durable Power of Attorney for Health Care on [DATE] (date) at [CITY] (city),
(THIS POWER OF ATTORNEY WILL NOT BE VALID FOR MAKING HEALTH CARE DECISIONS UNLESS IT IS EITHER (1) SIGNED BY AT LEAST TWO QUALIFIED WITNESSES WHO ARE PERSONALLY KNOWN TO YOU AND WHO ARE PRESENT WHEN YOU SIGN OR ACKNOWLEDGE YOUR SIGNATURE OR (2) ACKNOWLEDGED BEFORE A NOTARY PUBLIC.)
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
(You may use acknowledgment before a notary public instead of the statement of witnesses.)
State of Nevada }
County of [COUNTY] } ss.
On this [DATE] day of [MONTH] in the year [YEAR], before me, [NOTARY PUBLIC NAME] (here insert name of notary public) personally appeared [PRINCIPAL NAME] (here insert name of principal) personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he or she executed it. I declare under penalty of perjury that the person whose name is ascribed to this instrument appears to be of sound mind and under no duress, fraud or undue influence.
__________________________________________________(Signature of Notary Public)
STATEMENT OF WITNESSES
(You should carefully read and follow this witnessing procedure. This document will not be valid unless you comply with the witnessing procedure. If you elect to use witnesses instead of having this document notarized, you must use two qualified adult witnesses. None of the following may be used as a witness: (1) a person you designate as the agent; (2) a provider of health care; (3) an employee of a provider of health care; (4) the operator of a health care facility; or (5) an employee of an operator of a health care facility. At least one of the witnesses must make the additional declaration set out following the place where the witnesses sign.)
I declare under penalty of perjury that the principal is personally known to me, that the principal signed or acknowledged this durable power of attorney in my presence, that the principal appears to be of sound mind and under no duress, fraud or undue influence, that I am not the person appointed as agent by this document and that I am not a provider of health care, an employee of a provider of health care, the operator of a health care facility or an employee of an operator of a health care facility.
Signature: _________________________________ Residence Address: ___________________________________
Print Name: _______________________________ _________________________________________________________
Signature: _________________________________ Residence Address: ___________________________________
Print Name: _______________________________ _________________________________________________________
(AT LEAST ONE OF THE ABOVE WITNESSES MUST ALSO SIGN THE FOLLOWING DECLARATION.)
I declare under penalty of perjury that I am not related to the principal by blood, marriage or adoption and that to the best of my knowledge, I am not entitled to any part of the estate of the principal upon the death of the principal under a will now existing or by operation of law.
Signature: _________________________________ Residence Address: ___________________________________
Print Name: _______________________________ _________________________________________________________
DRAFTING NOTE: EXECUTION REQUIREMENTS
The principal must sign the power of attorney for health care and the signature must be either:
- Acknowledged before a notary public.
- Witnessed by two adult witnesses that know the principal personally, neither of which are:
- a health care provider;
- an employee of a health care provider;
- an operator of a health care facility;
- an employee of a health care facility; or
- the agent.
(NMS 162A.790(2), (3).)
If witnessed, at least one witness to the principal’s signature must be a person:
- Not related to the principal by blood, marriage, or adoption.
- To the best of the witnesses’ knowledge, not entitled to any part of the principal’s estate on the principal’s death.
That witness must sign a declaration indicating that these facts are true. If witnesses are used, the principal and witnesses should all sign in each other’s presence, like for the execution of a will.
If the principal plans to acknowledge the signature in front of a notary, counsel may remove the statement of witnesses language. Conversely, if the principal plans to use witnesses, counsel may remove the notary’s certificate of acknowledgment language.
If the principal resides in a hospital, residential group facility, skilled nursing facility, or individual residential care home, when the principal executes the power of attorney, a certification of the principal’s competency from a doctor or psychologist must be attached to the power of attorney
COPIES: You should retain an executed copy of this document and give one to your agent. The power of attorney should be available so a copy may be given to your providers of health care.
DRAFTING NOTE: COPIES
A copy of a durable power of attorney for health care generally has the same effect as the original. The principal may want to give a copy to the principal’s primary care physician and agent in case a copy is not readily available if the principal becomes incapacitated. However, the principal should note which parties have copies so that the principal can inform those holding copies when the principal modifies, replaces, or revokes the form. The principal otherwise risks having the principal’s agent or health care providers rely on an outdated form.
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